Access to justice

It is a fundamental principle of any democratic society that all those living within it have equal access to a justice system where they can expect, and be given, a determination of their rights without fear or favour, and free from external pressures upon a court or tribunal. The right to a fair hearing is recognised in the Victorian Charter of Human Rights and Responsibilities in section 24. This section is based on Article 14 of the United Nations International Covenant on Civil and Political Rights (ICCPR) which Australia has signed and ratified. Section 24 of the Charter states that a fair hearing requires that a person charged with a criminal offence or a party to a civil proceeding must have the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. This is broader than the ICCPR in that it clearly includes right to a fair hearing in civil proceedings. Liberty is firmly of the view that without the adequate provision and funding of legal aid services (this includes legal aid commissions and community legal centres) many people who are impecunious or disadvantaged may miss out on a fair hearing. A strong and vibrant legal aid system is integral to protecting the right of a fair hearing. It is a fundamental obligation of governments to adequately fund legal aid services. Pro bono legal assistance is not and should never be a replacement for such adequate funding, as it is necessarily ad hoc by nature. Rules of procedure which discourage litigants, e.g. by requiring security for costs or undertakings as to damages, should be reviewed especially in their application to public interest litigation. Public interest litigants should also be freed of the burden of paying the other party’s costs when they do not succeed in genuine cases with a real public interest.